Secrecy News

The Law of the Sea Convention and Intelligence

The Director of National Intelligence last year affirmed the Administration’s support for ratification of the Law of the Sea Convention. But a minority in Congress expressed concern that the Convention would impede U.S. intelligence collection.

“The overwhelming opinion of Law of the Sea experts and legal advisors is that the Law of the Sea Convention simply does not regulate intelligence activities nor was it intended to…,” wrote Charles Allen, then-Assistant Director of Central Intelligence for Collection, as quoted in an August 8, 2007 letter from DNI Mike McConnell.

But “the Treaty fails to protect the significant role submarines have played, especially during the Cold War, in gathering intelligence very close to foreign shorelines,” claimed Sens. Jim DeMint (R-SC) and David Vitter (R-LA), in a dissenting view not supported by the DNI or the leadership of the Senate Intelligence Committee.

Both perspectives were aired in a Senate Foreign Relations Committee volume last month that recommended ratification of the Convention. See “Convention on the Law of the Sea” (pdf), December 19, 2007.

0 thoughts on “The Law of the Sea Convention and Intelligence

  1. The position sought by Vitter and DeMint would seriously compromise US sovereignty because claiming a legal right for US submarines to conduct submerged intelligence activities in foreign territorial seas would result in other states (e.g. Russia, China, Cuba) having the same right in American territorial seas.

    Any US intelligence activities by submarines in foreign territorial seas would be _covert_ activities (just as were the U2 flights over the USSR) – and they would be covert for a very good reason – they are counter to the rights of the coastal state as recognized by customary international law, the 1958 Geneva Convention on the Territorial Sea that the US is party to and the 1982 Convention ratified by 154 nations and signed by the United States.

    Vitter and DeMint are echoing the arguments given them by a tiny group who believe that the US should not be bound by the rules that, in this case at least, we would apply to others. I am very disappointed that you presented the Vitter/DeMint view without explaining why it is so foolish.

    Territorial seas are the sovereign territory of the coastal states, subject to only the right of innocent passage that is now defined in the 1982 LOS Convention and was defined in the preceding 1958 Geneva Convention on the Territorial Sea and Contiguous Zone. From our own security perspective, we want our sovereign rights in our own territorial sea to be as they are provided in the 1982 Convention.

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